from the huh dept

While the past few years have seen a torrent of criticism heaped on the video game journalism world, far too little of it has been focused on the cozy contractual deals being worked out between publishers and YouTube personalities that review games. With some of these arrangements having come to light, most notably concerning Nintendo and Warner Bros. games coverage, it's fairly safe to assume that many other publishers do something of this sort. These arrangements work something like this: the game publisher will offer access to the games for review by the YouTuber, so long as the YouTuber agrees to offer generally positive reviews to the product. The YouTuber benefits by being first to market with reviews, the publisher benefits from positive coverage, and the public gets spit in the eye while losing their trust in the personalities they have followed. Add to it all that some of these arrangements fail to follow FTC guidelines on marking paid-for material and you're left with the inevitable understanding that this is an arrangement that can only last for a short period of time, as the public trust in the reviewers will torpedo to the point of losing the audience completely.

It's devolved to the point where even companies from which we've come to expect the worst are trying to get out ahead of all this. Electronic Arts, for instance, best known for its annual rivalry with Comcast over the "Worst Company" award, has developed a new policy for marking YouTube videos produced under this arrangement that is actually quite good.

In a post on EA’s German news blog (translated by NeoGAF), EA announced that they’re stepping up their disclosure game by contractually requiring content creators to disclose with EA-provided hashtags and watermarks. The watermarks are pictured above. I reached out to EA in North America, and they confirmed that it’s a company-wide thing, though some rules vary by region.

“Supported by EA” is to be used in situations where EA has paid for access to the game (travel, review copies, etc), but did not influence the video/stream itself. “Advertisement,” on the other hand, is exactly what it sounds like: EA provided material or directly influenced the direction of the content’s, um, contents.

The disclosure logos themselves, seen at the link, are simple and clear. It's actually the exact kind of transparency we would hope for. No longer should potential customers wonder if a review has been influenced in any way by EA, or even if EA has taken some actions to ingratiate itself to the reviewer. It's clearly labeled.

Now, we'll have to see how this ends up working in practice. Questions remain, such as how big the logos will be, whether YouTubers will take things a step further and call attention to the disclosures, or if nefarious omissions of the disclosure logos will occur. But in concept, it's quite good, and perhaps not the kind of thing we would expect to be pioneered by EA. So good on them.

from the the-man-in-the-middle-is-a-bit-of-a-jerk dept

Everybody wants a piece of the Internet advertising pie, and many are willing to sink to the very bottom of the well of stupidity to get what they believe is owed them. For years now ISPs, hardware vendors and even hotels simply haven't been able to help themselves, and have repeatedly been caught trying to inject their own ads over the top of user browsers and data streams. This is a terrible idea for a number of reasons, ranging from the fact that ad injection is effectively an attack on user traffic, to the obvious and inherent problem with defacing other people and organizations' websites and content with your own advertising prattle.

Still, companies like Comcast, Marriot and Samsung have all been caught trying to shove their ads over the top of user data streams. When pressed, most companies are utterly oblivious (or pretend to be utterly oblivious) as to why this behavior might not be that good of an idea.

AT&T's hotspots (or at least the one in Dulles) appear to be using technology provided by RaGaPa, a startup that promotes itself as an expert in "Wi-Fi Monetization
and In-Browser User Engagement Solutions." RaGaPa's tech loads the page via the hotspot, then make three edits over HTTP: the injection of an advertising style sheet, the loading a backup advertisement (in case the user's browser has disabled Javascript), and the injection of a pair of scripts for managing advertisement selection and loading. There's no mention of this practice anywhere in AT&T's terms of service.

As already noted, this type of injection is highly problematic and sets an awful precedent:

"AT&T has an (understandable) incentive to seek consumer-side income from its free wifi service, but this model of advertising injection is particularly unsavory. Among other drawbacks: It exposes much of the user’s browsing activity to an undisclosed and untrusted business. It clutters the user’s web browsing experience. It tarnishes carefully crafted online brands and content, especially because the ads are not clearly marked as part of the hotspot service. And it introduces security and breakage risks, since website developers generally don’t plan for extra scripts and layout elements."

As Mayer also notes, this is a legally muddy area, and, worried about regulatory wrist slaps, most busted ISPs have very quickly and sheepishly backed away from the practice for fear of legal repercussions. I reached out to AT&T to see whether this is a one-off instance of stupidity on the part of AT&T or somebody else (like Dulles), or if aggressively and idiotically injecting itself into the user browsing experience is now going to be AT&T's standard operating procedure across the company's network of 30,000+ Wi-Fi hotspots.

Update: AT&T has sent us a statement indicating that this was part of a limited trial:

"Our industry is constantly looking to strike a balance between the experience and economics of free Wi-Fi. We trialed an advertising program for a limited time in two airports (Dulles and Reagan National) and the trial has ended. The trial was part of an ongoing effort to explore alternate ways to deliver a free Wi-Fi service that is safe, secure and fast."

from the strategery! dept

There's that old joke that you've probably heard (in part because we've mentioned it in other contexts), about the drunk man searching for his keys under a streetlight, while admitting that he lost them further down the street. When asked why he's looking over by the light instead, he says "because that's where the light is." People even refer to this as the streetlight effect. And you can see it in all sorts of odd places.

These spots will be showing in theaters across the country, because that's exactly what people who just paid huge sums of money to watch a movie want to see: an extra commercial before the film they paid to see telling them them to stop being dirty pirates, with the usual claptrap about all of the poor workers that piracy impacts (leaving aside that those people aren't paid based on movie revenue...).

It's the streetlight effect all over again. The incompetent and ineffective Chris Dodd-run MPAA feels the need to do something, so they fall back on the same old game plan:

"Hey, let's advertise to try to make people feel guilty!"

"That's never worked before despite us trying for decades."

"This time it will work! It must work! Because they must all feel guilty! And once they see how guilty they should really feel, they'll stop pirating! Because I have no other ideas!"

"Okay, but where will we best place these advertisements to reach the right people?"

"I've got that one all planned out! We'll get them in the best possible spot: in the movie theaters! The theaters will show those ads for free and we've got a real captive audience!"

"But it's a captive audience who has already shown that they're willing to pay. Why should we advertise to them?"

"Didn't you hear me!?!? It's a captive audience and the theaters will let us do it for free! Piracy is solved!"

Good luck, guys. Once again, if you're looking for better ideas, maybe fire the content protection team, and hire some folks who actually get the internet.

from the well-look-at-that dept

For a few years now AT&T has taken heat for its "Sponsored Data" program, which lets certain companies pay AT&T an extra fee to let consumers access their content without it impacting their wireless data usage allotment. Critics have repeatedly charged that the program immediately creates an uneven playing field for small companies, independent and non-profits, who may not be able to afford the toll. While it's clear the plan violates net neutrality, consumers have been fortunate in that corporate interest in the idea so far appears to be minimal.

In an interesting twist, AT&T appears to now be cooking up a new program called "Data Perks" that gives consumers free, additional wireless data should they "interact" with AT&T partner brands in a specific fashion. Leaked information on the program suggests it's being run by AT&T's Sponsored Data partner Aquto, who explains AT&T's new project as such:

"Aquto CEO Susie Riley told VentureBeat that to many brands it’s a lead generation campaign. Subscribers are rewarded with data when they sign up for services, learn about new products, discover new apps, or click through and purchase something at a brand’s e-commerce site. If for example, an AT&T customer bought a DVD from a participating brand, they might be awarded with a gigabyte of data that they could use to browse any site, anywhere on the web, Riley said. Subscribers accumulate their data credits in their Data Perks account, then transfer the data into their AT&T wireless account when they want."

So far that sounds more neutrality friendly than the company's Sponsored Data effort, as it's opt in and doesn't tilt the mobile Internet playing field in any obvious fashion. Of course this is AT&T -- the same company that's been busted time and time again for business models that trample neutrality and consumer rights -- so we'll have to see if there's any nasty caveats when the program launches next Tuesday. AT&T might be engaging in semantics here (exempting some content from the cap, versus giving away "free" data if users "interact" with a brand). With the FCC's new net neutrality rules taking effect this week (you know, the ones AT&T is suing twice to overturn), it seems possible that AT&T would tread carefully

Maybe.

While the FCC's new neutrality rules don't cover data caps and zero rating specifically, when they take effect on Friday there is at least a complaint mechanism for those who find a specific business model obviously anti-competitive. As such, ISPs can still violate neutrality, but as noted previously, they just have to be extra-clever about it, dressing it up as an innovative business model and a great boon for consumers (see T-Mobile's Music Freedom). We'll see next week if AT&T's actually developing a sound business model for once -- or if it's just being extra clever.

from the who-cares-about-quality dept

We've discussed numerous times that as the Internet video revolution accelerates, the cable and broadcast industry's response has predominantly been to double down on bad ideas in the false belief that they can nurse a dying cash cow indefinitely. Netflix nibbling away at your subscriber totals? Continue to glibly impose bi-annual rate hikes. Amazon Prime Video eroding your customer base? How about we increase the hourly advertising load! Similarly, cable industry efforts at "innovative" viewing options (like TV Everywhere) are often more about giving the impression of innovation than actually innovating.

This has been going on for a while, and as complaints in this Reddit thread attest, another favorite tactic has been to heavily edit some programs for the same purpose. Fans of particularly popular programs tend to be the first to notice that their favorite content is now edited or accelerated, which may drive them to look elsewhere for a better quality version of that product (piracy, Netflix). Behold, even many executives in the cable and broadcast industry appear to be aware that adding more ads and degrading the quality of your product might not be the greatest idea for an industry at the cusp of a major competitive sea change:

"It is important for us to consider the effect this is having on the viewer experience,” said Jackie Kulesza, executive vice president and director of video at Starcom USA. “We want to ensure our message is seen by receptive viewers."..."They are trying to deal with a problem in a way that is making the problem bigger,” said Chris Geraci, president of national broadcast at media buyer Omnicom Media Group of the practice of increasing the commercial loads to make up for declining ratings."

Except the cable and broadcast industry has repeatedly shown it's not really worried about the "viewer experience." Why? Because for all of the bitching the public does about their cable company and its historically abysmal customer service, the industry knows the vast, vast majority continue to pay them an arm and a leg for bloated bundles of miserable programming that barely gets watched. Even as cord cutting accelerates, the industry isn't worried; plan B is to abuse its monopoly over the broadband last mile to ramp up deployment of broadband caps, recouping their lost pound of flesh via broadband overage fees.

from the quick-stop-that-advertising! dept

As the saying goes, death and taxes are both certainties -- as is the fact that politicians lie. But another near universal certainty is that Marvel will totally freak out whenever it gets the slightest inkling that its intellectual property is threatened. The latest head-scratching example of this was yesterday's leak of a trailer for The Avengers 2, which Marvel promptly DMCA'd.

The first trailer for next year's sequel to Marvel's The Avengers leaked today, earlier than Marvel Studios was obviously planning. The mega studio originally planned to show the new trailer publicly next week during an episode of television show Agents of SHIELD...Update: The leaked version of the trailer's been pulled from host Tinypic. Looks like Marvel isn't too thrilled about the trailer's early leak.

And you can see the studio's point. After all, movie trailers are advertisements, and Marvel certainly wouldn't want people advertising the studio's product to unbelievably hungry-for-anything fans out there. That might, you know, build up excitement for the new movie. What use could Marvel possibly have for that? As we know, now that the trailer has been leaked early before being taken down, literally nobody will see it during the Agents of SHIELD broadcast. Marvel must be totally screwed now, man. Game over.

Oh, yeah, here's the trailer that leaked.

Now, I'm sure you're wondering, "But, Tim, how could you possibly show us the trailer after Marvel DMCA'd the pants off of the leak?" Well, the answer is that I'm embedding that video from Marvel's own YouTube page. Yup, after the leak, and after it DMCA'd the leak because of how awful it was, Marvel then released the leaked trailer, prior to its original intended release, on its own YouTube page.

Which brings me to several conclusions. First, Marvel has admitted that there is no point to issuing DMCA notices any longer; otherwise, the DMCA notice would have been enough and it would have continued to release the trailer at the originally intended time. Second, Marvel hates getting free advertising. That's all a trailer is, after all, and Marvel has decided that the same video shown on its YouTube page shouldn't be hosted elsewhere, by other parties, for free. Makes sense. After all, you wouldn't want people to know about your movie or anything.

from the keep-busting-those-myths dept

We'd already explained how commercial use can be fair use in the Goldieblox v. Beastie Boys case, but we've continued to see people attacking the idea that an advertisement could possibly be either parody or fair use. I was going to write up something in more detail, but as is all too often the case, the awesome Andy Baio already did it and did it better, with a fantastic mythbusting of a variety of false statements being thrown around by many well-meaning, but not very knowledgeable, people talking about the case. He covers a lot of ground, all of which is worth reading, but I want to highlight the key case he talks about concerning the possibility of an ad being fair use as a parody. On Twitter and in the comments, I saw many people insist that an advertisement couldn't be either of those things, and insisting there were no cases to support the claim. Well, that's not true:

More than any other, I've seen this myth repeated everywhere. Can a company parody a famous artist's work and use it, against their will, to advertise an unrelated product? Actually, yes, as long as the use is transformative enough.

The most famous case is the Naked Gun advertisement below, a parody of photographer Annie Leibovitz's famous portrait of Demi Moore for Vanity Fair.

If you care about this sort of thing, the District Court's decision is a fantastic, and surprisingly readable, breakdown of the history of parody and fair use.

The ruling is well worth reading, citing the same Supreme Court case we talked about yesterday about how commercial use can absolutely be fair use, but directly applying it to this case, where a parody ad was created. While it recognizes that this is a commercial use, it notes that the overall weight of the four factors test makes it fair use:

The fair use doctrine has been described as a "guarantee of breathing space at the heart of copyright."... This breathing space ensures that copyright will not stifle the very proliferation of creative works that it was designed to foster. Three of the four fair use factors in the present case militate in favor of a finding of fair use, largely because the defendant's transformation of the plaintiff's photograph has resulted in public access to two distinct works, serving distinct markets, with little risk that the creator of the first work will be disinclined to create further works that may be open to parody. Because I agree with the Second Circuit that in this case "[a]ccording [the] proprietor [of the copyrighted work] further protection against parody does little to promote creativity, but it places a substantial inhibition upon the creativity of authors adept at using parody, ..." I hold that the fundamental purposes of copyright are best served by a finding that defendant's use of the Moore photograph is a fair one.

Earlier in the ruling, she also notes that while commercial use may be less likely to be protected as fair use, there are plenty of cases where it makes sense, if you understand the purpose of copyright:

I can only reconcile these disparate elements by returning to the core purpose of copyright: to foster the creation and dissemination of the greatest number of creative works. The end result of the Nielsen ad parodying the Moore photograph is that the public now has before it two works, vastly different in appeal and nature, where before there was only one.

Those findings clearly apply in the Goldieblox case as well, where the two situations are nearly identical. In fact, it's arguable that in the Liebovitz case, she actually had an slightly stronger claim than the Beastie Boys would have here.

And yes, this ruling is only a district court ruling in NY, so it is in no way binding on the California court where Goldieblox filed its declaratory judgment suit. But it highlights that, contrary to the claims of way too many people, yes, an advertisement can be a fair use parody of a different work.

from the cost-less-than-$3.5-million dept

Yesterday was the day that, each year, proves that people do not in fact hate advertising. They actually like it quite a bit if the advertising is good. What they hate is crappy and annoying advertising. Of course, every Super Bowl, various brands duke it out to see who can get the most bang for their buck in Super Bowl advertisements -- which this year went for a cool $3.5 million for a basic spot. Still, many people are pointing out that the real winner of the Super Bowl advertising fight wasn't from one of the TV commercials at all, but rather Oreo's advertising agency, who sprung into immediate action when the power went out at the Super Bowl. Within just a few minutes (I think slightly less than 15), Oreo had put out the following tweet:

Just in case you can't see the embed, it says "Power out? No problem." And then had the following image with the caption "You can still dunk in the dark."

A few other brands got out some clever tweets, such as Walgreens tweeting that it carries candles or Audi tweeting that it was sending some LEDs over to the Super Bowl. Twitter claims that four minutes after the lights went out an advertiser had already bid on "power outage" as a search term (you'd think "black out" might have been more effective). But Oreo actually got that graphic together, with the caption, and got it all up online quite quickly. I'm in awe, given that with big brands you normally expect there to be a bit too much red tape and "approvals" for anything like that. For Oreo, the key to having this work was that its ad agency folks and all of the key people from Oreo were in a room together, so the approvals went fast.

Tide also got a "blackout" graphic and joke online, three minutes after Oreo. It put up a weak image with a caption: "We can't get your blackout, But we can get your stains out." Kudos for trying, but definitely a step behind Oreo.

It's worth noting, by the way, that Oreo did, in fact, pay for a Super Bowl commercial as well, though it was showing up on lists of the worst Super Bowl commercials of the year. Whoever came up with the image and the tweet in record time may have saved the Super Bowl for Oreo.

Of course, all of this does raise a larger point about marketing and advertising these days. Doing a good job often has less to do with how much money you spend than with how good you are at actually connecting with people -- and a well-timed tweet and graphic can do wonders.

from the urls-we-dig-up dept

Public bathrooms everywhere have been trying to reduce their water, energy and paper product usage. There was even a $100,000 prize from the Gates Foundation to design a better toilet. Toilet paper could be the next bathroom product that's ripe for disruption, so ponder a few of these articles next time you're on the thinker.

from the ideas-and-execution dept

We're just about to start experimenting with a variety of new advertising setups here at Techdirt, which means we've been doing a lot of brainstorming about opportunities for creative, interesting campaigns in keeping with our philosophy that good advertising is good content. One thing we've been noticing over and over is that the most innovative online marketing pushes don't just come from the usual suspects (tech companies and online services) but also from unexpected places—like a century-old soup company.

This is your opportunity to revolutionize dinners everywhere: Develop a breakout idea based on the Campbell's Kitchen API that helps people decide: what’s for dinner tonight?

After seeing all the ideas, we’ll choose up to thirty semi-finalists and give them our API for three weeks to bring their ideas to life.

Up to ten finalists will then be invited to present their projects at Google’s HQ in NYC to compete for the championship and launch their ideas into the world.

It's a fantastic concept, and the API looks genuinely useful. Not only is the contest itself a great marketing opportunity, it's setting Campbell's up for ongoing exposure through the apps that are developed.

But, having said how cool this is from a marketing perspective, it's time for the disclaimer—and it's a big one. The moment you get past the initial idea and into the details, things really start to fall apart from an innovation perspective. Firstly, as you probably noticed, the API is not being opened up to the public—only to the contest semi-finalists. That severely limits the amount of innovation that will happen, and the amount of exposure the company will get as a result—it also limits the number of developers that will even want to participate. Unfortunately, Campbell's reason for this is clear: they intend to take total ownership of anything that comes out of this campaign.

In fact, they are so concerned about this that the fine print states the cash prizes ($25,000 plus a development contract for the winner, $10,000 to runners up) are not prizes at all—they are a fee for your work:

*Paid by Cambell for ownership of all ideas, concepts, code and intellectual property.

Setting aside the fact that you cannot own an "idea", this just stinks. On the one hand, it's not uncommon for creative contests to take ownership of submissions (though that's hardly universal), but it is the complete antithesis of what appears to be the spirit of this campaign: hacking and innovation. This is actually a big problem with corporate-run hackathons and coding contests, which frequently demand total ownership at the end. No smart developer with a truly great app idea would give it away for $25,000 for the copyright plus another $25,000 to build it—a popular app with a long tail can be worth way, way more than that.

There's nothing wrong with Campbell's trying to get an official app or two out of this—but when you look closely, the people who are submitting these ideas don't seem to be getting much in return. They want everyone to submit their best ideas for free, then they want 30 people to actually build those ideas—then Campbell's will plunk down $10k to take total ownership of any that "could be developed by Campbell in the future" (thus stopping all those runners-up from moving forward with their apps independently, and presumably cutting off their API access) and toss $50k to one developer to make their app market-ready. The winner gets an okay deal, while the runners-up pretty much get screwed.

So, for the next time Campbell's or another company tries a genuinely cool and innovative idea like this, I suggest a few tweaks to make the execution less distasteful. Firstly, open the API up to everyone, and leave it open; have sensible limitations like any public API, but let people build what they want. Secondly, give away modest but genuine prizes with no strings, while offering a bounty for ideas that you want to own without making that rights transfer a requirement of the contest. Thirdly, promote the submitted apps in a public gallery, and encourage all developers to move forward with building, deploying and marketing their apps—you'll get a hell of a lot more exposure, and you might even find your API becoming the de facto standard for such development.

In the mean time, to anyone eyeing the contest while an idea ferments in their brain, I suggest letting the Friday deadline for submissions lapse, and looking into some of the free and open recipe APIs to power your app.